NEW ZEALAND LAW SOCIETY V MITCHELL CA299/2010

NEW ZEALAND LAW SOCIETY V MITCHELL CA299/2010 2 November 2010NOTE: THE SUPPRESSION ORDERS MADE IN THIS COURT ON 18 OCTOBER 2010 (AS SET OUT AT [32] OF THIS JUDGMENT) REMAIN IN FORCE UNTIL THE EXPIRATION OF SEVEN DAYS FROM THE DATE OF DELIVERY OF THIS JUDGMENT. IN THE COURT OF APPEAL OF NEW ZEALAND CA299/2010 [2010] NZCA 498BETWEEN NEW ZEALAND LAW SOCIETY Applicant AND SHADRACH DARREN MITCHELL Respondent Hearing: 18 October 2010 Court: O'Regan P, Randerson and Stevens JJ Counsel: D A Laurenson for Applicant B Corkill QC for Respondent Judgment: 2 November 2010 at 4.00 pmJUDGMENT OF THE COURT A The application for an order pursuant to s 266 of the Lawyers and Conveyancers Act 2006 that the name of Shadrach Darren Mitchell be struck off the roll of barristers and solicitors is granted. B The suppression orders made in this Court dated 18 October 2010 are lifted with effect from seven days from the date of delivery of this judgment.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Striking off or suspension?[1] At issue in this case is whether, as the New Zealand Law Society contends, the name of Mr Mitchell should be struck off the roll of barristers and solicitors. Or, as Mr Mitchell submits, should the appropriate order be one of suspension? There is a further issue as to whether the suppression orders made by this Court at the conclusion of the hearing should be lifted. [2] The application made by the New Zealand Law Society (the applicant) was made to the High Court pursuant to s 266 of the Lawyers and Conveyancers Act 2006 (the Act). As is required by s 267 of the Act, the High Court considered the application and, having determined that it should not be dismissed, reserved the case for consideration of this Court. 1[3] Having considered the application, the affidavits sworn in respect of it, and having heard from counsel for the applicant and Mr Mitchell, this Court has reached the clear view that an order for striking off rather than a suspension is appropriate in all the circumstances. Further, there is now no reason for the suppression orders made at the conclusion of the hearing to continue. We will briefly set out our reasons for making these orders.Factual background[4] Mr Mitchell is now aged 38 years. In 2001 he was admitted as a barrister and solicitor and entered on the roll accordingly. In his application for admission filed with the then governing body, the Wellington District Law Society (WDLS), Mr Mitchell signed a declaration in the following terms:(a) I have not been convicted in New Zealand or elsewhere of any offence; and (b) I have been the subject of any Police Diversion Scheme ... Obstruction of Police August 2001 (offence January 2001) $125.00 donation to victim support.1 New Zealand Law Society v M HC Wellington CIV-2009-485-1944, 4 May 2010.[5] Contrary to the contents of the declaration, Mr Mitchell had, between 1989 and 1994, been convicted of 39 criminal offences including theft, burglary, possession of cannabis, disorderly behaviour, intentional damage, driving with excess breath and blood alcohol, assault of a constable and other driving offences. On three separate occasions he had been sentenced to short periods of imprisonment. [6] At a meeting with the secretary of WDLS in October 2001 to discuss his application for admission, Mr Mitchell again did not disclose the convictions. He gave an explanation for the obstruction of police offence (which had been disclosed in the declaration), saying that it arose out of an altercation outside a night club while he was a law student. [7] In 2006, Mr Mitchell applied for a practising certificate. Again, the convictions were not disclosed. In the application, he made the following statement:There are no other matters the Council should be aware of in determining whether I am a fit and proper person to practice [sic].[8] A practising certificate was duly issued to Mr Mitchell. Further practising certificates were issued for the years ending 31 January 2008 and 31 January 2009 respectively. [9] During the currency of the latest practising certificate, the secretary of WDLS received information suggesting that Mr Mitchell had been convicted of other offences and had spent time in prison. The secretary telephoned Mr Mitchell but spoke to Mr Mitchell's employer as Mr Mitchell was out of the office. As a result of some confusion, Mr Mitchell wrote to WDLS stating that he understood that it had been alleged that he assaulted a barrister and had been to prison as a result. Mr Mitchell refuted this. He referred to the diversion, but again did not mention his extensive list of previous convictions. In a telephone conversation on the same day Mr Mitchell told the secretary that he had not been to prison. [10] The secretary then sought further information from the police. This revealed the detail of the 39 convictions. There followed a meeting between Mr Mitchell, the secretary and the then president of WDLS. Mr Mitchell denied that the convictionsrelated to him. It was left to Mr Mitchell to obtain proof that the convictions did not relate to him. [11] In late August 2008, Mr Mitchell finally admitted that the convictions did relate to him and that he had been to prison. The case was then referred to the applicant for disciplinary purposes. [12] Rather than use the usual disciplinary procedures, the applicant decided to invoke the jurisdiction in s 266 of the Act because of possible complications over transitional provisions. Mr Mitchell did not oppose such course and has co-operated in bringing the application to a hearing.The High Court application[13] When such an application is made, it must first be considered by the High Court.2 The options for the High Court are either to dismiss the application or, if the Judge is of the opinion that it ought to be granted or that the case is in the doubtful category, to reserve the case for the consideration of this Court. [14] In the High Court, Mallon J noted that one of the criteria for admission as a barrister and solicitor under s 49 of the Act is that the person is a "fit and proper" person to be admitted. 3 The term fit and proper person is defined and includes, in addition to whether the person is of good character, whether a person has been convicted of an offence. 4 Plainly therefore, had Mr Mitchell disclosed his 39 convictions in his declaration to WDLS in 2001, an assessment could have been made as to whether he was a fit and proper person to be admitted as a barrister and solicitor. Similar considerations apply in respect of an application for a practising certificate. 52 Pursuant to s 267 of the Act.3 At [24].4 In s 55 of the Act.5 As set out in s 41(1) of the Act.[15] Mallon J considered the factual material presented by the applicant. 6 In addition she referred to the steps taken by Mr Mitchell to turn his life around between 1994 and 1996, including moving away from his home town and successfully completing an alcohol and drug treatment programme. The Judge noted his completion of a Bachelor of Arts degree in 1997 and a Bachelor of Laws degree in 2001. Apart from the incident in 2001, Mr Mitchell had stayed out of the courts since 1994. [16] The Judge also referred to Mr Mitchell's explanation for not disclosing his conviction history at the time of his application for admission in October 2001. It was that he "assumed" that his conviction history between 1989 and 1994 had been "expunged". So far as the failure to disclose his convictions when applying for a practising certificate are concerned, the explanation was that Mr Mitchell did not understand that his convictions were outstanding issues about which the Law Society needed to be aware. [17] The material before the High Court confirmed that Mr Mitchell had worked primarily in the employment law area since his admission as a barrister and solicitor in 2001. Further, he had been with his current employer since October 2003. Initially he had not been engaged in the legal team but had moved into that team at the time of obtaining a practising certificate. [18] In light of the factual material presented, the Judge reached the following conclusions:[28] On the basis of the evidence before me I am not satisfied that the Law Society's application should be dismissed. Rather I agree that M must have known that he was misleading the Wellington District Law Society, and the High Court when it made the order for his admission, about his previous convictions. Likewise he must have known that he was misleading the Wellington District Law Society when he applied for his practising certificates and again when the enquiries were made subsequent to the complaint. [29] M says he "assumed" his previous record had been expunged because he had been granted diversion. M does not say how he thought that might have occurred. At this time the Criminal Records (Clean Slate) Act 2004 had not been enacted and, in any event, M would not have been eligible6 Summarised at [4]–[11] above.under that Act because he had received custodial sentences. [Section 7(1)(b)] The required declaration for the admission application asked about any convictions – no time period was specified. The answer M gave was incorrect. [30] The application for the practising certificate was also misleading. As a lawyer, M would have been able to check the criteria for a practising certificate and to have appreciated the potential relevance of previous convictions. He would also have been able to check the Criminal Records (Clean Slate) Act 2004 to see that he was not eligible for a "clean slate". He chose to tell the Wellington District Law Society that there was no other relevant information. [31] M had a number of opportunities in 2008 to advise the Wellington District Law Society of his previous convictions and that he had been to prison. Instead he confined his answers to what he thought the particular complaint was about. Again he must have known that the Wellington District Law Society would have wanted to know if he had served any term of imprisonment whether it related to an assault on a barrister or not. When confronted with the police summary, M initially denied that it related to him when he must have known that it did. [32] As the authorities make clear, [Pou v Waikato/Bay of Plenty District Law Society CIV-2004-463-0511 HC Rotorua, 10 May 2006 summarises some of these authorities at [40] to [42]] integrity, honesty and trustworthiness are necessary qualities of a member of the legal profession. Unfortunately, despite the very real credit that is due to M for turning his life around, the cumulative effect of his conduct is that he let himself down and did not display the necessary integrity, honesty and trustworthiness when it came to his dealings with the Wellington District Law Society. I am of the opinion that the application ought to be granted [19] As a result of these findings, the Judge decided that the application to have Mr Mitchell's name struck off the roll of barristers and solicitors should be reserved for consideration by this Court. 7Submissions in this Court[20] Mr Laurenson for the applicant submitted that this is an appropriate case for Mr Mitchell to be struck off. He referred to the necessary standard of honesty and integrity, and submitted that to suspend him would require a finding that he will not act dishonestly in the future. On the facts of this case the Court ought not make such a finding. Leaving aside the separate question whether he would have reached the required standard had he disclosed his convictions in 2001, Mr Mitchell has been7 Pursuant to s 267(1) of the Act.persistently dishonest in his admission declaration, practising certificate applications, and dealings with WDLS in 2008. Though he is to be given credit for having substantially turned his life around since amassing the convictions between 1989 and 1994, his more recent conduct simply still fell well short of the required standard. There had been no appropriate lapse of time since the offending behaviour that might permit the Court to examine Mr Mitchell's more recent behaviour to ascertain whether the earlier lapses had been cured. [21] Mr Corkill QC for Mr Mitchell submitted that it is not necessary to strike off Mr Mitchell. He relied on Pou v Waikato/Bay of Plenty District Law Society, where a candidate for admission had been convicted as a student by a university disciplinary tribunal of an offence involving his use of a supervisor's computer account credit for his personal use when not authorised to do so, believing he would not have been caught. He then omitted to mention the conviction when making a declaration similar to that made by Mr Mitchell. A full bench of the High Court nevertheless granted Mr Pou's application for a declaration that he met the required standard. [22] Mr Corkill submitted that this case is similar to the example mentioned in ReDavis where a considerable lapse of time and subsequent behaviour might enable the Court to say that a candidate had "retrieved his character". 8 In any event, striking off Mr Mitchell is too harsh a sanction. Rather, the lapse of time between the latest offending behaviour in 2008, Mr Mitchell's cooperation with the applicant since mid-2008, the strong support of his employer and his having turned his life around mean that the public interest would be met by suspension. This would be a sufficient penalty.Discussion[23] The parties are agreed as to the material facts. The issue is whether this Court should strike off Mr Mitchell or suspend him. Section 267(3) provides:8 Re Davis (1947) 75 CLR 409 at 416–417. Ultimately suspension was not considered to be an appropriate option because of repeated misconduct demonstrating that the candidate had not become a man of good character.If a case is reserved for the consideration of the Court of Appeal, that Court— (a) must, as soon as practicable, consider the application and grant or dismiss it; and (b) may make such other order in respect of the application as it thinks fit.[24] We accept Mr Laurenson's submission that this is a case where it is appropriate to strike off Mr Mitchell. Like Mallon J, we are not satisfied that he is a "fit and proper person" within the meaning of s 49 of the Act, which imports the standard of "unquestionable integrity, probity and trustworthiness". 9 Mr Mitchell may well have met that standard had he disclosed his convictions promptly in his application for admission. That was the case in Re Owen, where a candidate for admission had, like Mr Mitchell, amassed a list of convictions but turned his life around in the intervening years such that the Court was satisfied that he met the required standard. 10[25] But quite apart from the fact that Mr Mitchell concealed the convictions at that time, he repeatedly failed thereafter to meet the required standard repeatedly by failing to disclose the convictions to WDLS and then denying them once they were put to him. This is not a case where, because of a considerable lapse of time since the offending behaviour, it could be said that Mr Mitchell is now a fit and proper person. Rather, this case is akin to Re Davis, where a recently-admitted barrister was struck off for concealing a decade-old burglary conviction from the law society and his character referees on admission. In those circumstances, the High Court of Australia could not be satisfied that he was now a man of good character. Likewise, we cannot say at this stage that the previous offending and the dishonesty in Mr Mitchell's dealings with WDLS are of historical significance only. [26] Nor do we think that a comparison with the Pou case assists Mr Mitchell. InPou the Court accepted that Mr Pou's failure to declare his university conviction was an oversight rather than a deliberate suppression. 11 It relied on the observations of character referees who knew of his conviction and had observed him under "trying9 L v Canterbury District Law Society [1999] 1 NZLR 467 at 474, cited in Pou at [41].10 Re Owen [2005] 2 NZLR 536 (HC).11 At [46].conditions" in finding that he met the required standard. In Mr Mitchell's case, however, we are satisfied that Mr Mitchell deliberately concealed his convictions on a number of occasions, right up to denying the convictions related to him when the list was put before him. In his dealings with WDLS in 2008, he was tested, where the standard of honesty and integrity is most required. Sadly, he let himself down by failing repeatedly to act honestly. [27] Mr Mitchell is to be credited for the way in which he has substantially turned his life around after 1994. He has also in recent times cooperated with the applicant. Moreover, he has it seems kept out of trouble. Further, his employer speaks well of him and continues to support him. He may be able in the future to make a successful application under s 246 of the Act for restoration of his name to the roll. However, on the evidence before us we find that his conduct falls short of the required standard of honesty and integrity. We are not satisfied that he is a fit and proper person to be on the roll of barristers and solicitors. [28] We therefore make an order pursuant to s 266 of the Act that the name of Shadrach Darren Mitchell be struck off the roll of barristers and solicitors.Name suppression[29] Mr Corkill accepted that s 269 of the Act requires notice of the order for striking off in the Gazette. But he submitted that further publication, as well as publication of the employer's name and particulars, was not necessary. We have already recorded that the employer supports Mr Mitchell and will continue do so even if his name is published. The concern of the employer relates to the effects of publication on clients of the firm. [30] The applicant opposed any permanent suppression orders. [31] We accept the applicant's submission that further suppression is inappropriate. There is a public interest in open justice. We consider that this is particularly important where public confidence in the legal profession is at stake. However, we accept that the employer should have a short period from the release ofthis judgment to advise clients of the position. The order stated at B above confirms the indication given at the end of the hearing and will give the employer time to deal with its clients. [32] For the sake of clarity, the orders made by this Court on 18 October 2010 provided: (a) the name and identifying particulars of the respondent and the respondent's employer are not to be published; (b) the particulars of the circumstances relied upon by the applicant to support the conclusion that the respondent is not a fit and proper person (including in particular details of previous convictions and alleged inadequate disclosures to the Wellington District Law Society), are not to be published; and (c) this Court's file is not to be inspected without the leave of a Judge of this Court.Costs[33] Costs are reserved. We anticipate that the parties should be able to agree. If not, we should receive memoranda from the applicant within 28 days of the date of this judgment and a reply from Mr Mitchell within a further 14 days.Solicitors: John Miller Law, Wellington for Respondent